WASHINGTON — If the proposed flag-desecration amendment is approved by the Senate and ratified by the states, it will likely take decades of litigation and court battles to determine its scope and impact, according to a three-member panel discussing the amendment yesterday at the National Press Club.
With the Senate scheduled to vote on the proposed amendment to the U.S. Constitution during the week of June 26, two prominent military veterans and a noted constitutional scholar discussed the pros and cons of the measure, in addition to its practical and legal implications.
While the panelists disagreed on the wisdom and necessity of the amendment, they agreed that its passage would merely mark the beginning of a polarizing debate.
That debate was exemplified through panelists Adrian Cronauer and James Warner, two military veterans with conflicting viewpoints on the flag amendment. On one hand, the flag is America’s most revered symbol, and protecting it does not suppress any essential idea, said Cronauer, national director for the Citizens Flag Alliance. On the other hand, a flag amendment would effectively elevate a symbol above its substance, said Warner, former Vietnam prisoner of war.
The amendment — which may be only one vote short of passage in the Senate — provides that “Congress shall have the power to prohibit the physical desecration of the flag of the United States.” Beyond that, however, the proposed amendment presents more questions than answers, said Robert Corn-Revere, a Washington, D.C., attorney who has worked extensively in First Amendment law.
“I don’t know how you approach defining ‘flag desecration,’” said Corn-Revere, author of one of a series of First Reports from the First Amendment Center, "Implementing a Flag-Desecration Amendment to the U.S. Constitution." “But I will tell you this: It’s a true legal conundrum.”
The proposed flag amendment does not define key terms, such as “flag of the United States,” or “flag desecration.” Rather, it simply enables Congress to pass legislation prohibiting desecration of the flag. Assuming the amendment is ratified (all state legislatures have signaled their willingness to do so), any resulting law Congress passes must answer a series of difficult questions, Corn-Revere said.
First, what is “the flag of the United States?”
“What kind of flags or flag-themed objects would be subject to the law?” asked Corn-Revere, as he held up flag-themed underwear, do-rags, napkins and plates. “Would these items be considered flags?”
Cronauer suggested using a “commonsense approach.”
“No one has ever saluted a necktie,” he said.
But Corn-Revere responded with more difficult examples, such as 47-star flags, or 12-stripe flags.
“Would these too be considered ‘flags of the United States'?” he asked.
Second, what is “flag desecration?”
For example, uncertainty exists over whether the term includes wearing the flag as clothing, or flying the flag upside-down, or attaching a miniature flag to a car antenna.
“And what about virtual desecration?” asked Corn-Revere, showing a computerized version of the flag on fire.
Traditionally, “flag desecration” has not been confined to just burning or other physical acts, but also to flag commercialization, Corn-Revere said. For example, the first proposed federal flag-desecration law, introduced in Congress in 1890, would have criminalized use of the flag in advertisements and in other commercial settings, and likely would have extended to political campaigns.
In 1907 the U.S. Supreme Court in Halter v. Nebraska upheld a state flag-desecration statute prohibiting the use of a flag on a beer bottle.
In any event, any law Congress enacts in the wake of an amendment will likely do one of two things, Corn-Revere said. Either it will be extremely broad, so as to criminalize the burning or commercialization of flag-themed clothing and other images of the flag. Or, more likely, it will apply far too narrowly to suit most advocates of an amendment, as it will allow a broad range of activities involving the flag (and near-flags) that many proponents of the amendment detest.
Cronauer said such questions didn’t need to be answered now and should be addressed after the amendment is passed. Regardless of how either Congress or the courts answer and interpret these issues, Cronauer said, the principle behind the amendment is still legitimate.
“If we desecrate a symbol for long enough, it starts to lose its meaning,” Cronauer said. “The amendment isn’t forcing anyone to act, and that's not what we’re about. All we’re trying to do is prohibit disrespect for the flag and nation.”
But silencing dissent and the free exchange of ideas is the ultimate form of disrespect to the nation, said Warner.
“Why is it the flag we want to protect?” Warner asked. “Why are we not trying to protect the Constitution instead?”
Setting fire to the First Amendment to prevent a form of political protest will accomplish “nothing,” Warner said. The proposed amendment has the practical effect of trying to impose a belief by force, he said.
“You can’t change by force a feeling in a man’s heart,” Warner said. “People are born free. People are born free to express ideas, even if I don’t agree with those ideas, or their manner of expression, and even if they’re not coherent.”
The practical effects of the amendment were also questioned by both Warner and Corn-Revere. The amendment will neither create patriotism, nor reduce flag-burning, they said. If anything, history has demonstrated that flag-burning will likely increase in the wake of an amendment, Corn-Revere said.
But the amendment is less about decreasing the number of flag-burnings and more about the principle of defending the nation’s symbol, Cronauer said.
“If the people want it — a vast majority of the American people want it, all the states want it — we ought to at least bring it to the people,” Cronauer said. “Let the people decide.”
Among those attending the panel discussion were Keith Kruel, former national commander of the American Legion, and Gary May, who lost both legs in the Vietnam war and is chairman of Veterans Defending the Bill of Rights.
First Amendment Center Ombudsman Paul McMasters organized the event and moderated the discussion.
“We thought it was important to bring together these three experts to foster more discussion of the urgent issues raised by the flag-desecration amendment proposal,” McMasters said.
Reacting to the panel later, Caroline Fredrickson, director of the ACLU Washington Legislative Office, said, "Congress should follow the example of the First Amendment Center by having an engaged and thorough debate on this amendment.”
Eric Nelson is an intern at the First Amendment Center and a third-year law student at Creighton University in Omaha, Neb.